The Sunshine Center has received several inquiries about how citizens may take advantage of the procedure for mediating public records disputes that was enacted by the General Assembly in July. The legislation, which was intended to provide public records requesters and custodians with a process for resolving public records disputes short of litigation, became effective Oct. 1, but as of this writing it is not completely clear how the process will work and, more importantly, whether it will be effective.
The General Assembly presumably intended to make the new process simple by engrafting it onto the well-established procedures for court-ordered mediation of civil lawsuits, but someone apparently neglected to check with the Administrative Office of the Courts, which is responsible for implementing the new law. In ordinary civil suits mediation occurs within the structure and context of an existing lawsuit, but the new process is designed as a precursor or alternative to litigation, so it requires clerks of court to open and maintain a new file. Around the time the new law took effect the AOC hastily created new forms and distributed instructions to the clerks, most of whom have not had time to familiarize themselves with the new directives. The AOC has told the clerks to treat requests for mediation of public records disputes as a type of “special proceeding,” charge a filing fee of $6.00, after which the requester and the custodian of the disputed records are supposed to choose a mediator via the same process as the litigants in civil cases. Among other things this means that requesters of public records who are not represented by attorneys will find themselves negotiating about the choice of a mediator with public agencies who are.
Perhaps the thorniest issue presented by the new law, however, is whether custodians of public records and/or the courts will interpret the new law as requiring requesters to participate in mediation as a prerequisite to pursuing their rights via a lawsuit grounded in the Public Records Law. If so, the new law will simply lengthen and increase the cost of a legal pipeline that is already too long and too costly.